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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 16958
Experience:  Licensed Attorney with 28 yrs. exp in Employment Law
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Ive been working for the same company for almost 18 years

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I've been working for the same company for almost 18 years now, About 6 years ago the company was bought out by a very well known corporation and things have changed for the worse.
I will get right to my point, I am what they call an exempt salaried manager, scheduled a minimum of 50 hours a week but only get a salary based on 45 hours, as well as any accrued vacation or sick time.
There is no limit to what this company expects from their managers. During the 4th quarter of business we were scheduled to work a minimum of a 6 day week work (scheduled 60) , we did this for 6 out of the 8 weeks in the quarter and they also made more than 1/2 of the weekends during this mandatory, some weeks I would have to work 10 days straight before seeing 1 day off.
I understand there is a difference between being exempt salary & non- exempt, I feel the company is taking advantage of this. We are paid as an exempt salaried, but are used as an non-exempt. As a manager we ring registers, clean bathrooms, retrieve carts, stock & process freight, off load freight coming into the building (average cases 1,200) not to mention doing our öwn"work. And even if our work is not complete it is expected for you to stay with no compensation.
Is what they are doing legal?
Help!!
Submitted: 1 year ago.
Category: Employment Law
Expert:  Marsha411JD replied 1 year ago.
Hello,

Thank you for the information and your question. Although there would be no way for me to give you an ultimate opinion since not only am I not allowed to since we cannot form an attorney-client relationship, but more importantly because I do not have all of the facts, including those from the employer's perspective, I can tell you that you have raised a legitimate issue. What I mean by that is that although an employer may generally work their employees as many hours as they deem necessary and also not pay their exempt workers any differently whether they work 30 or 80 hours a week, an employer may forfeit their right to identify an employee as exempt under certain situations.

You mentioned that you engage in work that hourly workers traditionally do. If that work is more than occasional, in other words, unless the majority of the hours you work are involved in exempt duties, you may, under the law actually be considered non-exempt and entitled to overtime for all hours worked in excess of 40 hours a week.

The only way though that you will know with certainty is to file either a wage complaint with the State or file suit under either Mass wage laws or the Federal Fair Labor Standards Act. In both cases there will be detailed development of your work days and, of course, the employer's input.

Your employer cannot lawfully take an adverse employment action against you for filing a wage claim or filing suit. You can find out how to file a claim by going to: http://www.mass.gov/ago/doing-business-in-massachusetts/labor-laws-and-public-construction/file-a-wage-complaint.html

Please let me know if you need any clarification. I would be glad to assist you further if I can.
Customer: replied 1 year ago.
Thank you for your response. As I stated I've been with the company for almost 18 years and unfortunately although they are not allowed to take adverse reactions to complaints, I have seen so very shady ways they go about getting rid of associates as a way of pay back, which ultimately leads to firing of that employee whom complained as in usually they will start to find if not make up things to get rid of them. So I guess I am scared to take action.


Just recently they had my do them as they put it a "favor" and fill in for another manager whom went out on a medical leave. This was to only be for a maximum of 6 weeks, I was told to return to my original store but my position was replaced while I was gone!!
I did them a "favor" which entailed me commuting and extra 10+ hours a week over what I normally do and this is the thanks I get :( I spoke with the DM and she said ït's just they way it is"and I was supposed to report back to my original store on the 19th but when I called for my schedule she told me to meet her back at the store I was helping out.

I fear they will pull yet another stunt to use me some more.
I'm embarrassed to say that in the beginning of this year my Dr. put me out of work for depression (stemmed from my job) which also caused the separation with,my husband.
Someone suggested I resign from my job, would you know if I would be able to apply for unemployment if I resign?

Expert:  Marsha411JD replied 1 year ago.
Hello again and thank you for the reply. The very last thing you want to do, if you want to protect your legal interests is to resign from your job at this point. I can't tell you what to do and you ultimately have to do what you think is right for you personally. But from a legal standpoint you will not only have a very difficult time qualifying for unemployment benefits, but also if you want to preserve any issue you might have related to retaliation for using FMLA (if you did) or discrimination based on your temporary disability of depression, you will want to stay if you can.

To back up a bit on the wage complaint issue. There are no guarantees that an employer won't take an adverse action based on a wage complaint, but if they do you then have legal recourse by way of either a wrongful termination suit if you are let go, or retaliation suit if you are demoted, etc.

As for job assignments, again as you know, the employer is free to set and change the terms and conditions of employment anytime. However, as I touched on above, they cannot do so either in retaliation for an employee taking time off under FMLA, or with discriminatory intent because the employee has, or had, a disability under the ADA. If you believe that occurred, then you need to take the first step which is to file a formal complaint with your HR. The employer must be given an opportunity to resolve the issue before you could take it outside the company and file a complaint with the EEOC or a law suit. If they cannot, or will not resolve it, then you can move forward with action outside the company.

Additionally, for purposes of unemployment benefits. In order for a claimant to qualify, they must either have been terminated without cause or must have quit for "good cause" attributable to the employer. Before the employee can quit due to what they believe is "good cause" they must first exhaust their remedies within the company to resolve the issues they have. Therefore, based on what you have told me, it would be difficult at this point to carry your burden of proof with the unemployment commission.

You can see what the State considers "good cause" to quit by reading the information at: http://www.masslegalhelp.org/employment-unemployment/ui-if-quit
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 16958
Experience: Licensed Attorney with 28 yrs. exp in Employment Law
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